Can President Trump Be Sued for Defamation Because of His Personal Tweets?

CAN PRESIDENT TRUMP BE SUED FOR DEFAMATION BECAUSE OF HIS PERSONAL TWEETS?

By: Alex Walsdorf, Volume 101 Staff Member

If you happen to visit President Trump’s private Twitter page,[1] you will notice his affinity for tweeting. Some of his tweets, at least on their face, promote respectful discourse and are fitting of the office.[2] Other tweets, however, seemingly do not befit our highest office. For example, when President Trump recently tweeted that former President Obama tapped his phone lines and was a “[b]ad (or sick) guy” for doing so,[3] agency officials, politicians, and the media quickly denounced the tweet because of its failure to be grounded in any factual basis. This was not the first time President Trump’s tweets attacked a citizen or corporation,[4] and it appears likely his tweeting habits will continue. President Trump’s tweeting raises the question—can he be sued for defamation (libel) stemming from the tweets of his personal Twitter account? This Post focuses on only one of the standard elements to prove a defamation claim: an unprivileged publication to a third party.[5] Does President Trump qualify for absolute privilege, and is he therefore immune from a lawsuit when tweeting from his personal account? Absolute privilege “is one that cannot be overcome by any other showing.”[6] President Trump’s absolute immunity from liability extends “to acts in performance of particular functions of his office.”[7] The reach of absolute immunity’s protection extends to “acts within the ‘outer perimeter’ of his official responsibility.”[8] The next question, therefore, is what are official presidential responsibilities? According to Nixon v. Fitzgerald, “[u]nder the Constitution and laws of the United States the President has discretionary responsibilities in a broad variety of areas, many of them highly sensitive. In many cases it would be difficult to determine which of the President’s innumerable ‘functions’ encompassed a particular action.”[9] President Trump has many functions under the Constitution, including treaty making, nominating ambassadors,[10] and ensuring the laws are faithfully executed through the police power.[11] While the office has numerous responsibilities, does President Trump tweeting from his private, created-before-the-Presidency account, fall under the ambit of an official function of the Presidency?

The argument in favor of liability against President Trump first begins with the fact that President Trump is tweeting from his very real, personal, private account (@realDonaldTrump), and not the official @POTUS account. If having two separate accounts, with one created and used privately before the Presidency and one used strictly after being sworn in both constitute official presidential accounts, then one of them is redundant. Furthermore, because his tweets from his private account could be sued upon before he ascended to office, that potential liability should carry forward while he is President; it remains a private account. Second, one could justifiably state that even the White House does not consider tweeting to be an official presidential act. According to the White House website, the only listed official communication responsibility of President Trump involves giving the State of the Union address to Congress and recommending “[m]easures as [the President] shall judge necessary and expedient.”[12] Unless President Trump tweets to Congress regarding the State of the Union or political measures—and is not tweeting to former President Barack Obama or Fox News like he currently does—then presumably tweeting is not a defined official communication function of the Presidency. Third, the Constitution is silent on presidential powers or responsibilities to communicate to the public. While it seems apparent that President Trump has the ability and power to speak to the public, the argument could be made that it is not an official presidential act but rather the action (and the right protected by the First Amendment) of a private citizen. When President Trump tweets, he is often not (if he ever is) doing so to negotiate a treaty, speak with Congress, make sure the laws are faithfully executed, or perform any other official political responsibility. Tweeting that former President Obama is a bad or sick guy is not an act of policy or a proposed measure designed to benefit the American people. Nor is it directed at the public generally in an informative or instructional manner. President Trump’s tweets are often not of any substantive[13] political nature.[14] Because tweeting does not appear to be an official act of the Presidency, President Trump should not qualify for absolute immunity from defamation liability.

However, proponents of absolute immunity for presidential tweets also have a case. In Clinton v. Jones, the Supreme Court found that plaintiff’s defamation claim grounded on comments made to the press by Ferguson (a former Arkansas police officer) and statements made by President Clinton’s agents after President Clinton’s election “arguably . . . involve[d] conduct within the outer perimeter of the President’s official responsibilities.”[15] While ambiguous and not free from doubt,[16] the Court did seem to signal that even statements made by the President’s aides calling a sexual assault victim a liar could be considered conduct within the protection of the President’s official acts. Surely, then, if speech by presidential aides calling someone a liar can fall within official presidential responsibilities—even if it is a close and ambiguous call—the President’s communication with the American public through Twitter surely falls within official presidential conduct.

Not only that, but President Trump’s tweeting habits are analogous to other presidential communications that have been performed in the past. For instance, President Franklin D. Roosevelt gave a series of “fireside chats” during his Presidency in which he directly spoke to the American public through radio.[17] Every President in recent memory has communicated to the public through press conferences, speeches, and interviews. President Obama is even famous for completing his annual March Madness bracket and sharing it with the American public. These forms and examples of communication, including now President Trump tweeting, are acts of the President to foster a relationship with the American people. Therefore, tweeting and other forms of communication with the American public are thus within the ambit of President Trump’s official duties. Twitter is, after all, a publicly available social networking website.

Finally, just because the Constitution does not explicitly mention presidential communication with the public does not foreclose such communication from being an official act. “Although they are not specifically mentioned in the U.S. Constitution, Executive Orders have been considered one of the President’s powers since George Washington’s administration.”[18] Similarly, sitting Presidents communicating with the public, as discussed above, is a longstanding tradition. In fact, it would be strange for President Trump to not engage in conversations with the public, and tweeting is one such form of a conversation.

Ultimately, is Trump acting in official presidential capacity when he tweets from his personal account? The answer is unclear, but for purposes of absolute immunity, it is possible a court could find that President Trump is not acting within his official duties when he tweets from his private Twitter handle.

President Trump does have an official President’s Twitter handle (@POTUS), but he still uses his personal account more often (and has direct control of it). ↑

For instance, President Trump tweeted the following on International Women’s Day: “On International Women’s Day, join me in honoring the critical role of women here in America & around the world.” Donald Trump (@realDonaldTrump), Twitter (Mar. 8, 2017, 4:13 AM), https://twitter.com/realDonaldTrump/status/839433951957696513. ↑

For example, President Trump tweeted the following about the New York Times: “For first time [sic] the failing @nytimes will take an ad (a bad one) to help save its failing reputation. Try reporting accurately & fairly!” Donald Trump (@realDonalTrump), Twitter (Feb. 26, 2017, 4:42 AM), https://twitter.com/realDonaldTrump/status/835817351178301440. ↑

The standard elements of a cause of action for defamation are: a defamatory statement about another; unprivileged publication to a third party; at least negligence on the part of the publisher; and either actionability of the statement or special harm caused by the publication. Malla Pollack, Litigating Defamation Claims, 128 Am. Jur. Trials 1, § 2 (2013). ↑

The Court did go on to say that “we do not address the question whether the President’s immunity from damages liability for acts taken within the ‘outer perimeter’ of his official responsibilities provides a defense to the fourth count of the complaint.” Id. at 686 n.3. ↑